Harvey et al v. Louisiana Department of Revenue et al

Filing 29

ORDER AND REASONS - IT IS ORDERED that the Internal Revenue Services motion to dismiss be and hereby is GRANTED. IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1367(c)(3), this matter is REMANDED to the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana. Signed by Judge Susie Morgan on 3/7/2016.(bwn) (Additional attachment(s) added on 3/8/2016: # 1 Letter re Remand) (bwn).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CYRIL J. HARVEY, JR.,
ET AL.,
Plaintiffs

CIVIL ACTION

VERSUS

NO. 15-5983

UNKNOWN AGENT OF THE
INTERNAL REVENUE SERVICE,
ET AL.,
Defendants

SECTION: “E”(5)

ORDER AND REASONS
Before the Court is a motion to dismiss filed by Defendant, the Internal Revenue
Service. 1 Plaintiffs, Cyril J. Harvey and Doris D. Harvey, oppose the motion. 2 For the
reasons that follow, the motion to dismiss is GRANTED, and the case is REMANDED
to the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana.
BACKGROUND
On October 15, 2015, Plaintiff Cyril J. Harvey and Doris D. Harvey (the “Plaintiffs”)
filed a Petition for Writ of Mandamus in the 24th Judicial District Court for Jefferson
Parish, Louisiana. 3 Plaintiffs named the following individuals and entities as Defendants:
(1) the Internal Revenue Service, through an unknown agent; (2) the Louisiana
Department of Revenue, through Secretary Tim Barfield; and (3) Jon Gegenheimer,
Jefferson Parish Clerk of Court and Recorder of Mortgages. 4 Plaintiffs seek an order, in
part, compelling the IRS to “furnish a verifiable tax return, verified and signed
assessments, [an] affidavit of the collector, [and] lawful notice of distraint and/or [an]
‘instrument’ substantiating a valid claim for years 2005 through 2013.”
R. Doc. 14.
R. Doc. 15.
3 See R. Doc. 1-2.
4 See generally R. Doc. 1-2.
1

2

1

On December 31, 2015, Defendant, the Internal Revenue Service (the “IRS”), filed
the instant motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules
of Civil Procedure. 5 The IRS contends the Plaintiffs’ lawsuit “is an attempt to challenge
the validity of the federal income taxes assessed against them.” 6 According to the IRS,
“[b]ecause such actions are prohibited under the Anti-Injunction Act and [the] federaltax exception of the Declaratory Judgment Act, the claims against the United States
should be dismissed for lack of jurisdiction” under Rule 12(b)(1).7
LAW AND ANALYSIS
The purpose of Plaintiffs’ lawsuit is plainly to prevent the Internal Revenue Service
from collecting taxes owed by the Plaintiffs. Such a lawsuit is barred by the AntiInjunction Act and the Declaratory Judgment Act. 8 Where these statutes apply, they
deprive the court of subject-matter jurisdiction. 9 Accordingly, the Internal Revenue
Service’s motion to dismiss is GRANTED, and the Internal Revenue Service is hereby
dismissed as a defendant in this matter.
The Court’s jurisdiction over this suit was founded upon 28 U.S.C. § 1442, due to
the Internal Revenue Service’s status as a defendant. 10 Because the Court has granted the
Internal Revenue Service’s motion to dismiss, the only claims remaining in this action are
founded upon state law. In such a situation, it is within the Court’s discretion to exercise,
or to decline to exercise, supplemental jurisdiction over the remaining claims.

R. Doc. 14.
R. Doc. 14-1 at 3.
7 R. Doc. 14-1 at 3.
8 See, e.g., Stewart v. McKinney, 62 F.3d 393 (5th Cir. 1995); Spencer v. Brady, 700 F. Supp. 601, 602
(D.D.C. 1988) (“The Declaratory Judgment Act’s tax exception, and the Anti-Injunction Act, work together
to ensure that preemptive taxpayer litigation will not frustrate the efforts of the Internal Revenue Service
(the “IRS”) to assess and collect federal taxes.”). See also Foodservice & Lodging Inst., Inc. v. Regan, 809
F.2d 842, 844–45 (D.C. Cir. 1987); Warren v. United States, 874 F.2d 280, 282 (5th Cir. 1989).
9 See Foodservice & Lodging Inst., Inc. v. Regan, 809 F.2d 842, 844–45 (D.C. Cir. 1987); Warren v. United
States, 874 F.2d 280, 282 (5th Cir. 1989).
10 See R. Docs. 1, 6, 27.
5

6

2

Specifically, Title 28, United States Code, Section 1367(c)(3), provides that a district court
may decline to exercise supplemental jurisdiction over a claim if “the district court has
dismissed all claims over which it has original jurisdiction.” As the Court has dismissed
the Internal Revenue Service as a defendant and, as a result, has dismissed all claims over
which it had original jurisdiction, the Court hereby declines to exercise supplemental
jurisdiction and REMANDS this matter to the 24th Judicial District Court for the Parish
of Jefferson, State of Louisiana.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that the Internal Revenue Service’s
motion to dismiss 11 be and hereby is GRANTED.
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1367(c)(3), this
matter is REMANDED to the 24th Judicial District Court for the Parish of Jefferson,
State of Louisiana.
New Orleans, Louisiana, this 7th day of March, 2016.
______________________ _________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

11

R. Doc. 14.
3